[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-11927

Non-Argument Calendar

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D.C. Docket No. 1:13-cv-01846-CC

XIAOYUN “LUCY” LU,

Plaintiff–Appellant,

versus

AIRTRAN AIRWAYS, INC.,

Defendant–Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia 

________________________

(October 6, 2015)

Before MARCUS, WILLIAM PRYOR, and DUBINA, Circuit Judges.

PER CURIAM:

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Appellant, Xiaoyun “Lucy” Lu (“Lu”), appeals the district court’s order 

dismissing Lu’s Second Amended Complaint (“Complaint”) against AirTran 

Airways, Inc. (“AirTran”) under Federal Rule of Civil Procedure 12(b)(6) and the 

preemption provision of the Airline Deregulation Act (“ADA”). After reviewing 

the record and reading the parties’ briefs, we affirm the order of dismissal. 

I. BACKGROUND

On June 1, 2013, Lu boarded AirTran flight 604 to travel from New York to 

Atlanta. After boarding the plane, Lu noticed a liquid leaking from the air vent 

above her first class seat. The “constant leak” landed on Lu’s face, arm, and pants. 

A flight attendant (“Flight Attendant One”) provided Lu with paper towels, but 

refused to take further action to address the leaking vent. Lu claims that she had to 

repeatedly wipe off the vents to stop the flow of liquid.

Prior to departing from the gate, Lu was scolded by another flight attendant

(“Flight Attendant Two”) for having her phone on. Lu attempted to explain that 

her phone was in airplane mode and asked that the flight attendant speak politely to 

her. According to Lu, Flight Attendant Two became outraged and threatened to 

“throw [Lu] off the plane.” Flight Attendant One asked Lu to turn her phone off,

which Lu claims she did immediately and in front of Flight Attendant One. Lu 

alleges that Flight Attendant Two continued to verbally abuse her and threaten to 

throw her off the plane. Next, a security officer entered the plane, announced that 

the plane would not take off until Lu was removed, and escorted Lu off the plane. 

She was not offered any explanation for her removal, nor was she provided a copy 

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of AirTran’s policy for excluding passengers when she requested one from an 

AirTran counter employee.

Lu initiated this action two days later, contending that she suffered 

humiliation, embarrassment, fright, and violation by being subjected to verbal 

abuse, an unknown leaking liquid, and her removal from the plane despite having 

turned off her cell phone. The district court determined that Lu’s claims for 

negligence, slander, breach of implied covenant of good faith, and negligent hiring, 

training and supervision were preempted under the ADA, 49 U.S.C. § 41713, and 

dismissed Lu’s remaining state law claims relating to the air vent under Rule 

12(b)(6). This appeal followed.1

II. STANDARD OF REVIEW

We review de novo the district court’s dismissal for failure to state a claim, 

accepting all factual allegations in the complaint as true and construing them in the 

light most favorable to the plaintiff. Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 

(11th Cir. 2015). To survive a motion to dismiss, a complaint must allege 

sufficient “facts to state a claim to relief that is plausible on its face.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 1974 (2007). We review a 

district court’s determination that federal law preempts state law de novo. Stansell 

v. Revolutionary Armed Forces of Colom., 771 F.3d 713, 725 (11th Cir. 2014). 

 1 Motions to amend Lu’s complaint to cure pleading defects in regard to the subject 

matter jurisdiction of this Court and to file out of time were granted on July 24, 2015 and August 

5, 2015, respectively.

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III. DISCUSSION

1. Preemption

The Airline Deregulation Act (“ADA”) was enacted in 1978 as an 

amendment to the Federal Aviation Act (“FAA”) to encourage competition in the 

aviation industry through deregulation. Morales v. Trans World Airlines, Inc., 504 

U.S. 374, 378, 112 S. Ct. 2031, 2034 (1992). “To ensure that the States would not 

undo federal deregulation with regulation of their own, the ADA included a preemption provision.” Id. The provision states: “[A] State . . . may not enact or 

enforce a law, regulation, or other provision having the force and effect of law 

related to a price, route, or service of an air carrier that may provide air 

transportation under this subpart.” 49 U.S.C. § 41713(b)(1) (2012). Accordingly, 

laws that “relate to” AirTran’s “price, route, or service” are expressly preempted 

under the ADA. 

The Supreme Court has defined “related to” under the ADA broadly, using

the same standard for interpretation as ERISA. Morales, 504 U.S. at 383–84, 112

S. Ct. at 2037 (“Since the relevant language of the ADA is identical [to ERISA], 

we think it appropriate to adopt the same standard here. . . .”).2 The Eleventh 

Circuit adopted the Fifth Circuit’s broad interpretation of “service” under the ADA 

in Branche v. AirTran Airways, Inc.:

 2 The Supreme Court declined, however, to define the “service” under the ADA. See Nw. 

Airlines, Inc. v. Duncan, 531 U.S. 1058, 121 S. Ct. 650, 650 (2000) (O’Connor, J., dissenting 

from denial of certiorari to address the circuit split regarding the scope of the term “services” 

under the ADA preemption provision).

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“Services” generally represent a bargained-for or anticipated 

provision of labor from one party to another. . . . Elements of the air 

carrier service bargain include items such as ticketing, boarding 

procedures, provision of food and drink, and baggage handling, in 

addition to the transportation itself. These matters are all appurtenant 

and necessarily included with the contract of carriage between the 

passenger or shipper and the airline. It is these [contractual] features 

of air transportation that we believe Congress intended to de-regulate 

as “services” and broadly to protect from state regulation.

342 F.3d 1248, 1256–57 (11th Cir. 2003) (quoting Hodges v. Delta Airlines, Inc., 

44 F.3d. 334, 336 (5th Cir. 1995) (en banc)). 

The district court’s preemption analysis categorized Lu’s Complaint into 

three main allegations: (1) rudeness, verbal abuse, and mistreatment by AirTran 

staff; (2) removal from the airplane despite turning off her cell phone; and (3) 

unknown liquid leaking onto the plaintiff from an air vent. 

i. AirTran Staff Conduct

The district court correctly concluded that Lu’s claims concerning AirTran 

staff’s rudeness following the confrontation regarding her cell phone are 

preempted under the ADA. Each alleged instance of mistreatment was related to 

AirTran’s services, the courteousness and professionalism of its staff while 

executing boarding procedures. See Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 

1339, 1344 n.2 (11th Cir. 2005) (“Baggage handling, passenger handling and 

courteousness relate to the heart of services that an airline provides. These services 

are inherent when you board an airplane.”); Branche, 342 F.3d at 1257 (including 

“boarding procedures” in its definition of services). Therefore, we agree with the 

district court that these claims are preempted under the ADA.

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ii. Lu’s removal from the plane

a. Tort claims

Lu argues that her removal from AirTran flight 604 failed to meet the 

standards for “permissive refusal” under 49 U.S.C. § 44902(b), which absolves air 

carriers of liability for refusal to transport to a passenger if “the carrier decides [the 

passenger] is, or might be, inimical to safety.” Cerqueira v. Am. Airlines, Inc., 520 

F.3d 1, 12 (1st Cir. 2008) (noting that the air carrier’s refusal “discretion is very 

broad”). The Eleventh Circuit has not discussed the application of § 44902(b) in 

this context. 

Section 44902(b) “does not provide for judicial review of decisions to refuse 

transportation by the pilot in command.” Cerqueira, 520 F.3d at 13. However, 

several circuits have reviewed wrongful refusal claims implicating § 44902(b) 

under anti-discrimination statutes, such as 42 U.S.C. § 1981. Id. at 13. The First, 

Second, and Ninth Circuits’ standard of liability for refusal to transport requires 

that the decision to refuse be “arbitrary and capricious.” See Cerqueira, 520 F.3d 

at 14 (citing Cordero v. Cia Mexicana De Aviacion, S.A., 681 F.2d 669 (9th Cir. 

1982); Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975)). There 

is no duty on the part of the captain to investigate recommendations by flight 

attendants for removal of a passenger, and the captain is entitled to take 

representations of flight attendants at face value. See Cordero, 681 F.2d at 672; 

Cristel v. AMR Corp., 222 F. Supp. 2d 335 (E.D.N.Y. 2002) (decision to eject a 

passenger from the plane for, among other things, repeated failure to shut down a 

portable electronic device not arbitrary or capricious “[e]ven if the battle of the 

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egos escalated to [the flight attendant] making exaggerated or even false 

representations to the Captain”). 

In the instant case, the district court expressed doubts as to the plausibility of 

plaintiff’s claims under § 44902(b), but, finding Lu’s tort claims for wrongful 

removal preempted under the ADA,3 did not reach a decision as to whether or not 

Lu’s Complaint stated a claim under § 44902(b). We conclude from the record

that Lu failed to state a claim for wrongful removal under § 44902(b). Because § 

44902(b) confers an affirmative privilege to the airline, the plaintiff has the burden 

to show that § 44902(b) does not apply. Cerqueira, 520 F.3d at 13–14. Lu did not 

allege any discriminatory animus for her removal from the flight. Lu only insisted 

that her actions were not “inimical to safety” and cited the “arbitrary and 

capricious preferences” of the flight attendants in an attempt to meet her burden

under § 44902(b). Such conclusory statements and bare assertions that Lu’s 

behavior was not inimical to safety—despite her admitted failure to comply with 

 3 We do not agree with this part of the district court’s analysis, but we affirm the district 

court’s decision on other grounds. See Watkins v. City of Montgomery, Ala., 775 F.3d 1280, 

1289 (11th Cir. 2014) (“[W]e may affirm a district court’s decision to grant or deny a motion for 

any reason supported by the record.”). The Eleventh Circuit has not addressed whether removal 

from an aircraft is a “service” under the preemption provision of the ADA. Insofar as Lu’s tort 

claims address her removal from the aircraft, we conclude that the record does not support the 

district court’s finding that removal is related to “transportation itself” or boarding procedures

under the ADA. The boarding and transportation services contemplated by the ADA address the

economic decisions and bargained-for contractual features “over which air carriers compete.”

Branche v. Airtran Airways, Inc., 342 F.3d 1248, 1258 (11th Cir. 2003). As it is improbable that 

customers discern between the procedures for removal for failure to comply with FAA 

regulations, we find the district court’s analogy too attenuated to support preemption under the 

ADA. The record does, however, support dismissal for failure to state a claim for wrongful 

removal.

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safety regulations4

—do not plausibly support a claim that her removal from the 

flight was arbitrary or capricious. Accordingly, we affirm the district court’s 

dismissal of Lu’s tort claims for her removal from the aircraft. 

b. Lu’s Claim for implied covenant of good faith and fair dealing

The district court correctly dismissed Lu’s contract claims as preempted 

under the ADA. In Wolens, the Supreme Court excepted breach of contract claims 

from the preemption provision of the ADA only where the action was confined to 

the terms of the parties’ voluntary undertakings, “with no enlargement or 

enhancement based on state laws or policies external to the agreement.” Wolens v. 

American Airlines, Inc., 513 U.S. 219, 223, 115 S. Ct. 817, 826 (1995); see 

generally Ginsburg v. Northwest, Inc., 134 S. Ct. 1422, 1427–31 (2014) (the ADA 

preempts a state-law claim for breach of implied covenant of good faith and fair 

dealing if it seeks to enlarge the contractual obligations that the parties voluntarily 

adopt). Here, because Lu’s contract claim relates to her removal from the plane 

under § 44902(b), it necessarily requires inquiry into federal law and regulations 

external to her carriage contract with AirTran. See Smith v. Comair, Inc., 134 F.3d 

254, 258 (4th Cir. 1998) (holding a contract claim for refusal to transport 

preempted where refusal decision was based on passenger’s failure to comply with 

FAA regulations implicated federal law, external to the parties’ agreement). 

Accordingly, we conclude that Lu’s contract claims are preempted under the ADA.

 4 14 C.F.R. § 91.21 prohibits the use of portable electronic devices, including cell phones,

on a commercial aircraft that the operator has determined will cause interference with the 

communication system of the aircraft on which it is to be used.

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iii. Leaking Air Vent

Branche confirmed that personal injury claims “resulting from the operation 

or maintenance of the aircraft” are not preempted under the ADA. 342 F.3d at 

1258. Lu’s state law claims concerning the leaking air vent are a result of the 

operation of maintenance of the aircraft. Therefore, the district court correctly 

concluded that Lu’s tort claims concerning the leaking air vent were not 

preempted.

2. Remaining State Law Claims

The district court dismissed the remainder of Lu’s state law claims under 

Rule 12(b)(6). We review each determination below. 

i. Negligent infliction of emotional distress

The district court correctly concluded that Lu failed to plead the necessary 

elements for negligent infliction of emotion distress under Georgia or New York 

law,5 specifically, a physical injury or any unreasonable endangerment presented 

by the leaking air vent. See Hill v. Ford Motor Co., 975 F. Supp. 2d 1351, 1359 

(N.D. Ga. 2013) (“Under Georgia’s ‘impact rule,’ a plaintiff must prove three 

elements for a negligent infliction claim: (1) a physical impact on the plaintiff, (2) 

that the impact causes physical injury to the plaintiff, and (3) that the physical 

injury to the plaintiff causes his or her emotional distress.”); Mortise v. United 

 5 The district court, sitting in Georgia, correctly noted that Georgia choice of law rules—

lex loci delicit and lex loci contractus—should apply in this case. The events at issue took place 

in New York, and the ticket supporting Lu’s contract claims was purchased in Georgia. 

However, the parties cited both New York and Georgia law in their briefs, and the district court 

applied both states’ laws in its analysis. As the issue of choice of law is not raised on appeal and 

is not dispositive to its outcome, we affirm without addressing choice of law. 

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States, 102 F.3d 693, 696 (2d Cir. 1996) (“Under [New York law’s] “direct duty” 

theory a plaintiff has a cause of action for negligent infliction of emotional distress 

if she suffers an emotional injury from defendant’s breach of a duty which 

unreasonably endangered her own physical safety.”). 

ii. Negligent Hiring, Training, and Supervision

Under both New York and Georgia law, claims for negligent hiring, training, 

and supervision require a showing that the employer was or should have been

aware of the employee’s tendencies that caused the injury prior to its occurrence. 

See Ehrens v. Lutheran Church, 385 F.3d 232, 235 (2d Cir. 2004) (applying New 

York law); Edwards v. Wisconsin Pharacal Co., LLC, 987 F. Supp. 2d 1340, 1347 

(N.D. Ga. 2013). Lu’s Complaint failed to plead facts regarding AirTran 

employees’ relevant tendencies, alleging only that AirTran “knew or should have 

known that policies were needed for employees to appropriately handle issues such 

as leaking air vents and passengers with cell phones.” Therefore, dismissal was 

proper. 

iii. Intentional Infliction of Emotional Distress

Liability for intentional infliction of emotional distress requires conduct “so 

outrageous in character, and so extreme in degree, as to go beyond all possible 

bounds of decency . . . and utterly intolerable in a civilized community.” Howell v. 

New York Post Co., 612 N.E.2d 699, 702 (1993) (citations omitted); see SmithTyler v. Bank of Am., N.A., 992 F. Supp. 2d 1277, 1282 (N.D. Ga. 2014). Lu’s 

allegations that she was made to suffer constant leaking liquid in her first class seat 

fall well short of this standard, and the district court correctly dismissed this claim. 

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iv. Slander

As previously discussed, the comments made by Flight Attendant Two 

during boarding relate to AirTran’s services and are preempted under the ADA. 

Because we conclude Lu’s slander claim involving Lu’s removal and the security 

officer’s related statements are not preempted, they will be briefly addressed. “A 

plaintiff must plead four elements to state a claim of defamation: (1) a false and 

defamatory statement concerning the plaintiff; (2) publication by the defendant of 

such a statement to a third party; (3) fault on the part of the defendant; and (4) 

injury to the plaintiff.” Tucker v. Wyckoff Heights Med. Ctr., 52 F. Supp. 3d 583, 

597 (S.D.N.Y. 2014); Monge v. Madison Cnty. Record, Inc., 802 F. Supp. 2d 

1327, 1333 (N.D. Ga. 2011). Statements that are “substantially true are not 

defamatory.” Tucker, 52 F. Supp. 3d at 597; see Monge, 802 F. Supp. 2d at 1333.

Lu failed to allege that the security officer’s statements were false, only claiming 

that they were “insulting.” Accordingly, Lu failed to state a claim for slander. 

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s order dismissing Lu’s 

Second Amended Complaint. 

AFFIRMED.

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